Augustine v The Nursing and Midwifery Council [2009] EWHC 517 (Admin)

Case No CO/9106/2008[2009] EWHC 517 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/03/2009
Before
THE HONOURABLE MR JUSTICE BEATSON
Between
GEORGEKUTTY AUGUSTINEAppellantTHE NURSING AND MIDWIFERY COUNCILRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR. JAMES TOWNSEND (instructed by Mr. Jonathan Green, Solicitor from the RCN) for AppellantMR. SALIM HAFEJEE (In-house Legal Team, Nursing & Midwifery Council) for RespondentHearing Hearing date: 12 March 2009
Judgment
[1]This appeal is against two decisions made by the Conduct and Competence Committee of the Nursing and Midwifery Council (“the Council”) on 27 August 2008. The first was to strike the appellant off the register as a result of a conviction for perverting the course of justice. The second was to make him the subject of an interim suspension order to cover the period during which an appeal against the substantive decision could be made. The appeal is brought pursuant to Article 38(1) of the Nursing and Midwifery Order 2001 SI 2001 No. 253 which provides a right of appeal from orders other than interim orders made by the relevant committees of the Council.[2]The appellant is aged 34. He qualified as a nurse in India in 1996 and moved to the United Kingdom in 2002. After completing an adaptation course he was registered by the Council. From September 2006 until the order of the committee he was employed at a residential home in Mid-Glamorgan.

The circumstances of the appellant’s conviction:

[3]On 5 April 2006 the appellant was involved in a three vehicle road traffic accident. When the police attended the appellant gave his details. He said he was the driver of one of the vehicles and was asked to produce his driving documents at the police station. A few minutes later, having telephoned a friend who advised him that his international driving licence was no longer valid in the UK and that to drive on his provisional driving licence he needed to be accompanied by a supervising driver, he approached the police again. He stated that he had misunderstood their questions and, contrary to what he had said earlier, there was another person in the car.[4]Three days later on 9 April the appellant attended the local police station with a Mr Charles. He produced a valid provisional driving license. He and Mr Charles both claimed that Mr Charles had been supervising the appellant at the material time. This was a lie. The appellant had apparently been put in touch with Mr Charles by the friend he phoned after the accident and, as emerged at the hearing of the Conduct and Competence Committee, agreed to pay Mr Charles £250 for assisting him. The police investigated the matter. In the light of what others involved in the accident had said, they doubted the appellant’s assertion that another person had been present in the car with him at the time of the accident.[5]On 16 June the appellant and Mr Charles were arrested and interviewed at the police station. In his first interview the appellant maintained that he had been supervised by Mr Charles. When Mr Charles was subsequently interviewed he admitted that he had received a telephone call from the appellant at the time of the accident asking him to say that he had been supervising him at the time of the accident, and agreed to do so. The appellant was then re-interviewed. In the light of Mr Charles’ admission, the appellant admitted telephoning from the scene and asking Mr Charles to say that he had been supervising him so that he would be compliant with the terms of his provisional driving license.[6]The appellant and Mr Charles were charged with an offence of perverting the course of justice. They both pleaded guilty at the first opportunity at Cardiff Crown Court. The appellant was sentenced to 28 weeks imprisonment suspended for 12 months, required to do 40 hours unpaid work and fined £200. The sentencing

judge said:

“neither of you had any previous convictions and it seems to me that, basically, you are thoroughly decent men who entrapped yourselves very foolishly by trying to get out of an insurance and licensing jam. I am absolutely satisfied that neither of you will ever appear before any court again charged with any criminal offence but because the custody threshold has been passed I have to deal with you in the manner already indicated”
.

The disciplinary proceedings:

[7]By a letter dated 6 February 2007 the Gwent Police informed the Council of the conviction and its circumstances. On 3 August 2007 the Council informed the appellant that it had referred an allegation that his fitness to practice was impaired to an investigating committee. The investigating committee met in September 2007 and referred the matter to the Conduct and Competence Committee.[8]The Conduct and Competence Committee (“the Panel”) met on 27 August 2008. The appellant admitted that his fitness to practice was impaired by reason of the conviction. The case presenter addressed the Panel on the seriousness of the offence and sought to place the conviction within the context of the NMC’s Code of Professional Conduct.[9]The Committee found that the appellant’s fitness to practice was impaired by reason of his conviction. Its reasons were:
“Firstly the seriousness of the offence which involved dishonesty. Secondly, the registrant repeated misleading information to the police on three separate occasions: at the scene of the accident on 5 April 2006, at the police station when providing his documents on 9 April 2006, and at the police station on his first interview on 16 June 2006. Thirdly, this conduct was a serious breach of several aspects of the NMC’s Code of Professional Conduct…”
[10]The Panel stated that the breaches were of Paragraphs 1.2, 1.5 and 7.1. Paragraph 1.2 provides that a registered nurse “must act in such a way that justifies the trust and confidence the public have in you”. Paragraph 1.5 requires a registered nurse to adhere to the laws of the country in which the nurse is practising. Paragraph 7.1 provides:
“You must behave in a way that upholds the reputation of the professions. Behaviour that compromises this reputation may call your registration into question even if it is not directly connected to your professional practice.”
[11]The Panel then considered what sanction to impose. It heard from the case presenter and Mr Townsend called the appellant and Mrs Hodges, who had been the Matron Manager at the care centre which employed the appellant. Mr Townsend asked the appellant how he felt about appearing before a Panel, and the appellant said “I am very sorry for the conviction and I am really ashamed to sit down in front of the Panel”. He gave details of his professional background, and said he had not been in trouble with the law before or in any professional trouble in terms of discipline.[12]The appellant was also questioned by the Panel. He said he had phoned a friend after the policeman had come and the friend had told him that he would get into trouble because he only had an international licence. The friend said he would get Mr Charles to help. He said that he made arrangements with Mr Charles to tell lies on his behalf before going to the police station. Asked whether there was any payment made the appellant said that he had paid him £250.[13]Mrs Hodges said that the appellant had only advised her as his employer of his conviction after she had received a letter from the Council. She also said he did not tell her that he had paid £250 for someone to lie on his behalf. Asked what she thought about the latter she said “not very good”.[14]In his submissions to the Panel Mr Townsend relied on the fact that the appellant had an international driving licence, had paid an insurance premium but was not covered because the policy did not cover his driving without an appropriate licence and without being supervised. He asked the Panel to look at the matter not as three individual instances of lying but one moment of madness at the roadside. He submitted that the appellant’s lie at that time put him in a position where, whatever he did he was going to get into trouble. He referred to the decision of the Privy Council in Manzur v GMC [2001] UPC 55. In that case a doctor had made fraudulent claims against the National Health Service on ten occasions. The fraud was thus directly connected with his practice as a doctor but the Privy Council concluded that the appropriate order was one of suspension of registration for a three month period.[15]Mr Townsend submitted “while the fact that the dishonesty is not in any way connected with his profession is not an answer to the charge, it is relevant and … highly relevant to the question of what the appropriate disposal should be”. His submission was that this was an initial stupid lie by a man of otherwise impeccable character both professionally and otherwise, about which he did then not come clean and thus painted himself into a corner. He referred the Committee to the Indicative Sanctions Guidance and invited them to conclude that this was a case in which a caution could be applied. He submitted that the appellant had insight into his failings, had apologised publicly to the Committee and was ashamed of himself. He relied on the incident being an isolated incident done on the spur of the moment and the remarks of the sentencing judge.[16]The Panel decided that the appropriate sanction was a striking off order. In its reasons it stated that it decided that the circumstances of the conviction were too serious for no sanction to be adopted. In considering whether to impose a caution order the Panel stated that the following factors were relevant in this case:
“(1) The admission of the facts only came during the second interview with the police on 16/6/06 after having given the police misleading and untruthful information on 3 previous occasions, namely (i) at the scene of the accident on 5/4/06, (ii) at the police station on 9/4/06 and (iii) in his first interview on 16/6/06. (2) There was insufficient insight shown by the registrant into the failings even at today’s hearing, as shown by his apparent failure to understand the implications of paying Mr Charles £250 to tell the police that he was supervising Mr Augustine at the time of the accident. (3) This was not an isolated incident, but a succession of lies told on three different occasions over a period in excess of two months. The deceit was deliberate and involved Mr Charles as a co-conspirator. (4) There was no evidence that the registrant had taken suitable rehabilitative steps by studying the NMC’s Code of Conduct since the conviction. (5) There was no prompt informing of the registrant’s employer by Mr Augustine. Mrs Hodges told the Panel that she found out from the NMC and the RCN before he confirmed his conviction to her. (6) The Panel noted the lack of harm to patients, previous good history, lack of recognition of behaviour and references produced. (7) However, in this case most of the appropriate factors to support a caution were not present.”
[17]The Panel next considered a conditions of practice order and decided that it was not appropriate as the conviction was not directly related to his professional competence.[18]The Panel next considered suspension but decided that “the conviction was fundamentally incompatible with continued registration with the NMC, and suspension for up to a year was inappropriate”.[19]It gave the following reasons for its decision that a striking off order was the appropriate sanction; “(1) The conviction reveals a serious departure from the NMC’s Code of Conduct in particular paragraphs 1.2, 1.5 and 7.1. (2) The confidence in the Council would be undermined if the registrant was not struck off. (3) The reasons why a caution is not appropriate in this case are reasons why a striking off order is appropriate. (4) This is a proportionate sanction, in the opinion of the Panel.”

The grounds of appeal:

[20]On behalf of the appellant it is submitted that the sanction of a striking off order was wrong because:
“(a) The Panel gave insufficient weight to the fact that the conviction giving rise to the finding of unfitness to practise was wholly unrelated to the appellant’s practice as a nurse: (b) The Panel gave insufficient weight to the fact that offence arose from an initial lie told to the police on the spur of the moment, with no premeditation; (c) The Panel gave insufficient weight to the fact that the appellant was in all other respects a good character and good standing in the profession; (d) The Panel took into account irrational factors, namely an alleged failing of insight when the appellant had expressed regret and apologised (as mentioned by the legal assessor in his advice); (e) The Panel took into account alleged failure to take rehabilitative steps “by studying the NMC’s Code of Conduct”, when this factor was irrelevant to their considerations; (f) The Panel gave insufficient weight to the effect of the striking off order on the appellant and his family; (g) The Panel failed to apply the reasoning in the analogous case of Manzurv General Medical Council [2001] UKPC 55.”

Discussion:

[21]It is clear from the authorities that a principal purpose of a professional committee or Panel considering a disciplinary matter is the preservation and maintenance of public confidence in the profession and this differentiates it’s function from that of a criminal court: see for example Fatani and Raschid v General Medical Council [2007] EWCA Civ 46 at [19], [16], and [26] per Laws LJ. As a consequence the approach of the High Court to a statutory appeal such as this is that it will correct material errors of fact and of law and “it will exercise a judgement, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case”: Fatani and Raschid v General Medical Council at [20]. See also Sheill v General Medical Council [2008] EWHC 2967 (Admin) [12] [14] per Foskett J which sets out His Lordship’s analysis in Chyc v General Medical Council [2008] EWHC 1025 (Admin) [4]-[6], and the statements in the earlier cases of Threlfall v General Optical Council [2004] EWHC 2683 Admin at [21] and Gupta v General Medical Council [2002] 1 WLR 1691. There was no issue between the parties as to the applicable principles. The issue was as to their operation to the facts of the present case.[22]Mr Townsend relied in particular on the first ground of appeal, that insufficient weight was given to the fact that the conviction giving rise to the finding of unfitness to practice was unrelated to the appellant’s practice as a nurse. I shall, however, first consider his other grounds. This is because of his reliance in this context (as well as in a freestanding way) on the submission that six of the factors in the Indicative Sanctions Guidelines which support a caution were present and a seventh was partially present.[23]On the question of whether the Panel erred in relation to the fact that the offence arose from an initial lie told to the police on the spur of the moment and with no premeditation, it is utterly unarguable that the Panel fell into error on this. In its finding on impairment the Panel found that the appellant had lied on three separate occasions to the police over a period of two months. It also emerged during the hearing as to the appropriate sanction that the appellant had paid his accomplice to lie to the police. The Panel was well aware of how the offence arose. It is to be observed that, even on the day of the accident, the lie to the police followed telephone conversations with the appellant’s friend and Mr Charles, and so was not spontaneous or on the spur of the moment.[24]I also reject the submission that the Panel gave insufficient weight to the fact that the appellant was in all other respects of good character and good standing or to the effect of the striking off order on him and his family. His professional background, the references and the effect on him and his family had been put to the Panel by Mr Townsend when making his submissions. The legal assessor reminded them of these matters when giving his advice. The Panel noted the previous good history and the references as the sixth factor in the section of its decision dealing with whether a caution would be appropriate. The effect of a striking off order would have been manifestly apparent to this experienced professional Panel.[25]I turn to the submission that it was irrational of the Panel to take into account an alleged failing of insight. It was said this was irrational because the appellant had expressed regret and apologised. Mr Townsend submitted that, as well as apologising to the Panel, the appellant had pleaded guilty to the criminal charge at the first opportunity. He submitted the Panel’s finding of insufficient insight was not supported by the evidence.[26]Insight into failings is one of the factors set out in the Indicative Sanctions Guidance and it was for the Panel to assess, on the evidence before it whether there was a failing of insight. The appellant was given an opportunity to say what he wished. He chose to make a brief apology and say only that he was really ashamed to be in front of the Panel. In making its finding of impairment the Panel had referred to a number of the paragraphs of the Code of Conduct which had been broken. The appellant chose not to comment on those paragraphs or his understanding of them. Moreover, during the hearing it emerged that the appellant had not told his employer of the conviction and that she had first learned of it from the Council, and that he had paid Mr Charles for telling the lie to the police. The appellant showed no awareness of the aggravating nature of his having made a payment to Mr Charles. The Panel was entitled to take these factors into account in assessing his insight. As far as the Panel’s finding that the appellant had taken no rehabilitative steps by studying the Code of Conduct is concerned, the material provisions of the code were referred to before he was called. He thus had the opportunity of saying what his understanding of them had been and was in the light of the disciplinary proceedings. The written submissions made on his behalf stated that the code had no relevance to this type of case. I reject this submission. It is true that the provisions of the code regarding patient care were not relevant, but those to which the Panel had referred were relevant.[27]As I have stated, at the core of this appeal was Mr Townsend’s submission that insufficient weight was accorded by the Panel to the fact that the conviction was unrelated to the appellant’s practice as a nurse. In his oral submissions Mr Townsend emphasised the absence of any explanation in the Panel’s decision as to why, despite this, striking off was appropriate. In this way the ground, which as originally presented was one of “insufficient weight” being given to this factor, became a complaint about the adequacy of the Panel’s reasons.[28]It would, undoubtedly, have been helpful for the Panel expressly to state why, although the conviction was unrelated to the appellant’s practice, it considered that striking off was the appropriate sanction. The decision does, however, state that the conviction reveals a serious departure from the Code of Conduct. In this context it refers to paragraph 7.1 which makes it clear that behaviour which compromises the reputation that the profession may call the registrants registration into question even if it is not directly connected to his or her professional practice. It is also clear from the Panel’s decisions both as to impairment and as to the sanction that the maintenance of trust and confidence in the nursing profession was central to the Panel’s consideration of the appellant’s case.[29]The Panel stated that a conditions of practice order was not appropriate because the conviction was not “directly related to his professional competence”. This showed that the Panel did take this factor into account when considering the sanction and in making its choice as between a caution, suspension and striking off.[30]It had been submitted to the Panel that this was a classic case in which a caution could properly be applied and this was also submitted before me. However, as I have stated, the issue that was central for the Committee at the hearing was the maintenance of trust and confidence in the profession: see the second reason for the Panel’s conclusion that a striking off order was the appropriate sanction. A number of the matters upon which Mr Townsend relied in support of his submission that the appellant could appropriately be cautioned do not, in the circumstances of this case and for the reasons I have given, in fact support that submission.[31]The assessment of the weight of the various factors was a matter for the Panel. The Panel was, for the reasons I have given, entitled to conclude that the appellant had not shown insight into his failings, that there was premeditation, and that the incident, which went on over two months, was not an isolated incident. It was also the case that there was no evidence that the appellant studied any of the relevant provisions of the Code of Conduct.[32]Before the Committee Mr Townsend relied on the factual circumstances and the sanction imposed in Manzur v GMC [2001] UKPC 55. He was entitled to do so before the Panel. His analysis of the sanction in that case and in a number of other cases, for example Lowe v General Osteopathic Council [2007] EWHC 2839 (Admin) was, however, misplaced in this court. The issue for this court is whether, on the approach which I have set out at [21], and taking account of the expertise of the Panel and the secondary role of the court in relation to the application of principles to the facts of an individual case, the Panel either erred in law or fact in deciding on the appropriate sanction. I have concluded that it did not.[33]In so far as Mr Townsend’s submissions turned the ground based on insufficient weight into one based on absence or insufficiency of reasons, the issue is whether the language of the decision fairly indicates to the person involved why the decision affecting him was made.[34]Re Poyser and Mills Arbitration [1964] 2 QB 467 contains a classic statement of what is required to satisfy a duty to give reasons. Megaw J stated that the reasons for a decision must be intelligible and must deal with the substantial points that have been raised. It has also been said that they must tell the parties in broad terms why they lost or, as the case may be, won: see UCATT v Brain [1981] IRLR 224, 228. I have concluded that, against the background of the submissions made at the hearing, the appellant would (or should) have understood why the Panel concluded that striking off was the appropriate remedy and why it was proportionate.[35]The Panel’s reasons state the following:(a) there had been deliberate dishonesty on three occasions over a two month period,(b) the criminal offence was a serious one and a serious breach of several aspects of the Code of Professional Conduct,(c) the appellant did not inform his employer promptly about his conviction, and(d) the confidence in the Council would be undermined if the appellant was not struck off. It was clear that the maintenance of trust and confidence in the nursing profession was central to the Panel’s consideration of the appellant’s case.[36]As to the making of an interim suspension order, the appellant had previously not been subject to such an order. The Panel was however entitled to conclude that, once it decided that striking off was the appropriate and proportionate sanction, such an order should be made. The situation changed once it had concluded that the seriousness of the conviction and the need to maintain public trust and confidence in the profession required striking off.[37]For these reasons this appeal is dismissed.